Moore v. Casselberry

• Decision Date: 03 November 2008
• Docket Number: No. 05-CV-6063L.,05-CV-6063L.
• Citation: 584 F.Supp.2d 580
• Parties: Christopher MOORE, Plaintiff, v. Officer J. CASSELBERRY, Officer M. Vandergrift, Nurse Karen Dyal, Sergeant Porter, Officer Marshal, Officer Scott and Officer Worle, Defendants.
• Court: U.S. District Court — Western District of New York

584 F.Supp.2d 580

Christopher MOORE, Plaintiff, v. Officer J. CASSELBERRY, Officer M. Vandergrift, Nurse Karen Dyal, Sergeant Porter, Officer Marshal, Officer Scott and Officer Worle, Defendants.

No. 05-CV-6063L.

United States District Court, W.D. New York.

November 3, 2008.

Christopher Moore, Pine City, NY, pro se.

Gary M. Levine, New York State, Office of the Attorney General, Rochester, NY, for Defendants.

DECISION AND ORDER

DAVID G. LARIMER, District Judge.

Plaintiff Christopher Moore ("Moore"), an inmate in the custody of the New York State Department of Correctional Services, commenced this action pro se, asserting claims under 42 U.S.C. § 1983, for alleged violations of his constitutional rights. Moore has named six Correction Officers ("C.O.s") and Nurse Karen Dyal as defendants. The alleged constitutional violations occurred while Moore was confined at Southport Correctional Facility, where he was serving his sentence of twenty-five years to life for murder in the second degree.

Defendants have all moved for summary judgment to dismiss the complaint (Dkt. # 32). Plaintiff has filed a response to the motion (Dkt. # 41).

Plaintiff sets forth three causes of action in his pro se complaint (Dkt. #1). The first cause of action, which is addressed below, asserts an Eighth Amendment claim stemming from an alleged assault on plaintiff by the defendant C.O.s on November 2, 2003.

The second cause of action charges defendant Nurse Karen Dyal with filing a false or incomplete medical report. The report at issue was prepared in connection with, or shortly after, the alleged assault that plaintiff complains of in the first cause of action.

The second cause of action must be dismissed. Plaintiff's conclusory statements that the report is false are not sufficient to survive a motion for summary judgment. In any event, even if the report was incomplete or false, that does not state a federal constitutional violation. There is no basis for a constitutional claim alleging the mere filing of a false report. See Freeman v. Rideout, 808 F.2d 949, 951 (2d Cir.1986), cert. denied, 485 U.S. 982, 108 S.Ct. 1273, 99 L.Ed.2d 484 (1988); Santana v. Olson, No. 07-Cv-0098, 2007 WL 2712992, at *2 (W.D.N.Y. Sept. 13, 2007). There is also no indication in the record that Dyal falsified her report out of deliberate indifference to plaintiff's serious medical needs, or out of any improper motive.¹

Moreover, there is no evidence that Moore exhausted his administrative remedies as to this claim. The Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(a), requires inmates to exhaust all claims prior to initiating a federal court action. There is no evidence in the record that plaintiff ever filed a grievance concerning Dyal's alleged filing of a false medical report. The claim against Nurse Dyal is therefore dismissed. See Sweet v. Wende Correctional Facility, 514 F.Supp.2d 411, 413-14 (W.D.N.Y.2007); Rodriguez v. Hahn, 209 F.Supp.2d 344, 348 (S.D.N.Y.2002).

In his second and third causes of action, plaintiff also alleges—again in conclusory terms—that Nurse Dyal and C.O. Worle discriminated against him on account of his race, in connection with his requests for sick call and his mail. These claims must be dismissed. Moore did not file a grievance regarding these matters either and the failure to file such a grievance precludes these claims as well. Id.

In any event, there is no evidence of intentional or purposeful discrimination by either Dyal or Worle against plaintiff based on his race. The claim is stated in the most conclusory terms and there is no evidence that plaintiff was treated from any other similarly-situated inmate, or that racial animus played any part in any acts or decisions relating to plaintiff. Even if this claim had been exhausted, then, defendants would be entitled to summary judgment on the merits.

The principal claim advanced by plaintiff is contained in his first cause of action, in which he alleges that a group of C.O.s assaulted and beat him, in violation of plaintiff's rights under the Eighth Amendment.² Defendants move for summary judgment on this claim on the ground that plaintiff's allegations and testimony concerning this claim are incredible as a matter of law and that no reasonable jury could credit the claims.

In support of that argument, defendants rely on the Second Circuit's decision in Jeffreys v. City of New York, 426 F.3d 549 (2d Cir.2005). In Jeffreys, the plaintiff sued several police officers under § 1983, alleging that they had assaulted him and thrown him out of a third-story window. Shortly after the incident giving rise to his claim, however, and long before he filed his federal complaint, the plaintiff had told a number of witnesses that he had either jumped or fallen out of the window, and that he had not even seen any police officers until after he hit the ground. In addition, the medical evidence was inconsistent with plaintiff's allegations of having been hit in the head with a flashlight prior to being thrown out the window. Id. at 552-53.

Affirming the district court's grant of summary judgment for the defendants, the Second Circuit acknowledged the general rule that "[w]hen considering a motion for summary judgment, a court must construe the evidence in the light most favorable to the nonmoving party, drawing all inferences in that party's favor," and that a court faced with such a motion "must ask not whether ... the evidence unmistakably favors ones side or the other but whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented." Id. at 553 (internal quotation marks and alterations omitted).

The court also stated, however, that "[t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Id. at 554 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). "At the summary judgment stage," the court said, "a nonmoving party `must offer some hard evidence showing that its version of the events is not wholly fanciful.'" Id. (quoting D'Amico v. City of New York, 132 F.3d 145, 149 (2d Cir.), cert. denied, 524 U.S. 911, 118 S.Ct. 2075, 141 L.Ed.2d 151 (1998)).

Applying those principles to the record before it, the Second Circuit concluded that although "there [we]re many material issues of fact disputed in the instant case, ... there were no genuine issues of material fact in the instant case—that is, that even after drawing all inferences in the light most favorable to Jeffreys, no reasonable jury could have issued a verdict in his favor." Id. The court added that

[w]hile it is undoubtedly the duty of district courts not to weigh the credibility of the parties at the summary judgment stage, in the rare circumstance where the plaintiff relies almost exclusively on his own testimony, much of which is contradictory and incomplete, it will be impossible for a district court to determine whether "the jury could reasonably find for the plaintiff," Anderson, 477 U.S. at 252, 106 S.Ct. 2505, and thus whether there are any "genuine" issues of material fact, without making some assessment of the plaintiff's account. Under these circumstances, the moving party still must meet the difficult burden of demonstrating that there is no evidence in the record upon which a reasonable factfinder could base a verdict in the plaintiff's favor.

Id.

In the case at bar, there are certainly undisputed, or indisputable, facts in the record that cast doubt upon the veracity of some of plaintiff's allegations. First, plaintiff admitted at his deposition that he was on "psych meds" at the time of the incident in question. Plaintiff's Deposition Transcript ("Tr."), Dkt. #33, at 13. He stated that he was on this medication because he "was hearing voices," which would "start messing with [him] when [he] was stressed out." Tr. at 19. He stated, "sometimes they tell me, like, to hurt the police...." Tr. at 19-20.

Plaintiff also testified that when the alleged assault began, defendants pushed him "[o]nto the shower door," and then "thr[ew him] on the floor" and began "kicking," "sticking," and "jumping on" him. Tr. at 26. Plaintiff said that when defendants threw him onto the floor, he "went face first on the floor," and that he "landed hard on the floor." Tr. at 39.

Plaintiff testified that after he hit the floor, defendant Worle "grab[bed his] throat," and that defendant Casselberry attempted to stuff his baton in plaintiff's mouth. Tr. at 28-29. Plaintiff said that defendants also kicked him in his face, stomach, side and legs about twenty times. Plaintiff stated that the kicks that were administered by defendant Vandergrift "wasn't soft" kicks, and when asked if Vandergrift's kicks were similar to "how [a football player] kicks off and takes that big wind up," he replied, "Yeah, he kicked me." Tr. at 31. Plaintiff also testified that Vandergrift struck him in the leg with his baton. Tr. at 31-32.

A little later in his testimony, plaintiff stated that he "wasn't kicked in the face," but rather "was punched in [his] face." Tr. at 32. He estimated that he was punched in the face about ten times. Tr. He added that "they weren't no soft punches," that he "was feeling black eyes, scratches on [his] face," and that he was punched "really hard." Tr. at 33. Plaintiff also said that "[t]hey was hitting [him] in [his] back with the sticks." Tr. at 33-34. Plaintiff estimated that this beating lasted about ten minutes. Tr. at 35.

Next, according to plaintiff, defendants picked him up off the floor, and led him, in handcuffs and leg restraints, to a stairwell, where they threw him down the steps. Tr. at 40. Plaintiff said that he was thrown "from the third floor steps, down to the next steps," i.e., "to the landing part," and that he "landed hard on [his] back...." Tr. at 43, 44.

Plaintif...